05-094

            Petitioner, the Board of Education of the Brewster Central School District, appeals from the decision of an impartial hearing officer which ordered it to reimburse respondents for their son’s tuition costs at the Kildonan School (Kildonan) for the 2004-05 school year.  The appeal must be sustained in part.

            Respondents' son was 13 years old and attending eighth grade at Kildonan when the impartial hearing began on November 22, 2004 (Tr. p. 26).  Kildonan has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities (8 NYCRR 200.7). The student has identified weaknesses in receptive language and auditory processing that affect his reading decoding and written language (Parent Ex. 12 at p. 10) and attentional deficits that were diagnosed in 1999 as an attention deficit hyperactivity disorder (ADHD) (Dist. Ex. N at p. 1).  The student was initially classified by petitioner's Committee on Special Education (CSE) as a student with a speech or language impairment subsequent to a referral by his kindergarten teacher during the 1996-97 school year (see Parent Ex. 15 at pp. 1, 4; Dist. Ex. C; see 8 NYCRR 200.1[zz][11]).  The student's classification was changed in 1999 to a dual classification as a student with a speech or language impairment and a learning disability (LD) (Dist. Exs. E at p. 1, F at p. 1, G at p. 1, H at p. 1).  For the 2004-05 school year, petitioner's CSE classified the student as LD (Dist. Ex. EE at p. 1; 8 NYCRR 200.1[zz][6]).  The student's eligibility for special education services and classification as a student with LD are not in dispute (see Tr. pp. 27-28).

            The student's early speech was reportedly difficult to understand because of articulation errors (Dist. Ex. N at p. 1).  In 1996-97, he attended kindergarten in petitioner's district, where he was referred to petitioner's CSE because of difficulty following directions due to poor attention, impulsive behaviors, poor articulation and slow progress in reading readiness (Dist. Ex. CC at p. 1).  He received speech services in kindergarten (Dist. Exs. N at p. 1, Z at p. 4), and received speech and remedial reading services in first and second grade (Dist. Ex. N at p. 1; Parent Ex. 15 at p. 5).  In November 1999, when the student was in third grade, the CSE recommended dual classification as LD and speech and language impaired and that he receive specialized reading instruction 30 minutes per day in a small group (Dist. Ex. H at p. 1).

            For fourth grade during the 2000-01 school year, the CSE recommended that the student receive specialized reading instruction 30 minutes per day in a small group in the general education setting and specialized language arts instruction for one period per day in a 15:1 inclusion setting (Dist. Exs. F at p. 1, G at p. 1).  He also received speech-language therapy two times per week as well as various program and test modifications (Dist. Exs. F at pp. 1-2, G at pp. 1-2).  In fifth grade during the 2001-02 school year, the student received special class reading and language arts instruction, each for 45 minutes per day in a 15:1 inclusion setting, speech-language therapy three times per week and two hours of direct instruction per week by a consultant teacher to assist with reading required for math, as well as two hours per week of speech-language therapy as extended school year services in summer 2001 (Dist. Ex. E at p. 1).

            In April 2002, when the student was in fifth grade, his parents arranged for a private neuropsychological evaluation (Dist. Ex. N).  The evaluator's findings included identification of a "significant central language disorder with mild receptive features, moderate expressive and anomic features, and marked speech praxis" as well as deficits in executive and executive-motor skills (Dist. Ex. N at p. 6).  The evaluator concluded that the student's speech dyspraxia was the primary cause of his difficulty with reading and recommended speech-language therapy services and consideration of an Orton-Gillingham or Wilson program to teach reading, with use of a whole word approach to reading instruction until the student was reading at the third grade level (Dist. Ex. N at pp. 6-7).

            In June 2002, an assessment of the student's literacy skills was conducted by a private evaluator, who reported that the student demonstrated difficulty decoding words and deficits in language processing (Parent Ex. 17 at p. 8).  The evaluator recommended that the student be instructed using a "consistent systematic approach to literacy skills" and suggested that a multisensory approach to instruction such as Orton-Gillingham or Lindamood-Bell be implemented (id.).  In September 2002, respondents unilaterally enrolled their son in sixth grade at Kildonan (Parent Ex. 16 at p. 1).  Kildonan was described by its academic dean as a private school for students with reading-based learning disabilities (Tr. p. 662).

            The student remained at Kildonan for seventh grade during the 2003-04 school year (Tr. p. 195).  On July 13, 2004, the CSE¹ convened for the student's annual review to develop an individualized education program (IEP) for the student's eighth grade year (Dist. Ex. EE at p. 1).  It recommended that the student receive special education instruction in English, Math, Science, Social Studies and Reading in a 15:1 general education inclusion setting and also receive speech-language therapy in a small group twice per week for 30 minute sessions in a special location (id.).  The CSE also recommended that in summer 2004 the student receive extended school year services of specialized reading three hours per day in a 15:1 special education setting and speech-language therapy twice per day for 30 minute sessions in a small group setting (Dist. Ex. EE at p. 2).

            Respondents did not accept the CSE's recommended educational program.  By letter dated September 26, 2004, respondents requested an impartial hearing (Dist. Ex. A).  The impartial hearing commenced on November 22, 2004, but the scheduled date was cancelled on consent of the parties (see Tr. p. 5).  The impartial hearing resumed on January 25, 2005 and concluded on May 24, 2005 after five days of testimony.  On August 12, 2005, the impartial hearing officer rendered his decision and found that the CSE meeting of July 13, 2004 was improperly composed because the regular education teacher in attendance was a tenth grade high school teacher and the special education teacher in attendance was an elementary school special education teacher (IHO Decision, p. 5).  However, the impartial hearing officer found that this procedural flaw did not impact the discussion at the CSE meeting (id.).  The impartial hearing officer further found "this to be a very close case” and concluded that the services provided by petitioner may have served the student well when he last attended petitioner's school in fifth grade, but his deficits were so severe that at the eight grade curriculum level the program at Kildonan enabled the student to make meaningful progress with a level of frustration that was tolerable to the student (IHO Decision, p. 13).  The impartial hearing officer ordered that petitioner reimburse respondents for their son’s tuition costs at Kildonan for the 2004-05 school year and denied respondent’s request for reimbursement for the cost of two evaluations  (IHO Decision, p. 16).

            On appeal, petitioner contends that it offered respondents' son a FAPE for the 2004-05 school year, and further that Kildonan did not provide appropriate services to the student.  Petitioner requests reversal of the impartial hearing officer’s decision to the extent that tuition reimbursement was granted for the 2004-05 school year.  Respondents contend that the petition should be dismissed and that the impartial hearing officer’s decision be affirmed.  Respondents submitted an amended Memorandum of Law dated October 11, 2005, seeking, in addition, reimbursement for the cost of two evaluations. 

            The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that children with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]).²  A FAPE includes special education and related services designed to meet the child's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).³ A board of education may be required to reimburse parents for their expenditures for private special educational services obtained for a student by his or her parent, if the services offered by the board of education were inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist.,    --F.3d--, 2005 WL 2381962, at *5 [2d Cir. Sept. 28, 2005]; Application of the Bd. of Educ., Appeal No. 03-062). The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 [2d Cir. 2003]; M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 05-091).  To meet its burden of showing that it had offered to a provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

            While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim, 346 F.3d at 381).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D. K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S., 231 F.3d at 103 [citation and internal quotation omitted]).  To do this, the record must be examined for "any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 [2d Cir. 2003] [citation and internal quotation omitted]; Walczak, 142 F.3d at 130). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130).

             State and federal regulations require that the student be assessed in all areas related to the suspected disability (20 U.S.C. § 1414[b][3][C]; 34 C.F.R. § 300.532[g]; 8 NYCRR 200.4[b][3]).  An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).  Regulations require that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]).  School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

            An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the child's needs arising from his or her disability to enable the child to be involved in and progress in the general curriculum, and meeting the child's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]).  In addition, an IEP must describe how the child's progress towards the annual goals will be measured and how the child's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]).

            Respondents contend that there were procedural infirmities  in the formulation of the student's July 13, 2004 IEP (Dist. Ex. EE), asserting that the CSE was improperly constituted due to the absence of a special education teacher or a regular education teacher at the CSE meeting who was familiar with the eighth-grade program that was recommended by the CSE for the student.  A CSE must include the parent of the child, at least one regular education teacher of the child (if the child is, or may be participating in the regular education environment), at least one special education teacher of the child or, if appropriate, at least one special education provider of the child, a school psychologist, an additional parent of a student with a disability residing in the district, a representative of the school district who is qualified to provide or supervise the provision of special education, and an individual who can interpret the instructional implications of evaluation results, and persons having knowledge or special expertise regarding the student, and if appropriate, the student (8 NYCRR 200.3[a][1]).

            The IDEA, its implementing regulations, and New York law require that the CSE include "at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment)" (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R. § 300.344[a][2]; 8 NYCRR 200.3[a][1][ii]).  The regular education teacher member "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate behavioral interventions and strategies and the determination of supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; see 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  The regular education teacher must also "participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP (20 U.S.C. § 1414[d][4][B]; 34 C.F.R. § 300.346[d]; 8 NYCRR 200.3[d]).  In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member "should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child" (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26).

            The U.S. Department of Education has explained that the purpose behind the regular education teacher requirement is for that teacher to serve a critical role in providing input on modifications and supplementary aids and services that would allow the child to remain in the regular education environment to the maximum extent appropriate (64 Fed. Reg. No. 48, at p. 12591).  The purpose of having the regular education teacher who is actually assigned to teach the child present at the CSE meeting is so that that teacher may participate in discussions about how best to teach the child (64 Fed. Reg. 48, p. 12583).   The Department of Education also recognizes that not all regular education teachers of a child may be present at the CSE meeting, and therefore directs school districts to inform regular education teachers of the child who are not present at the meeting of their specific responsibilities related to implementing the IEP, and of any specific accommodations or modifications contained in the IEP (64 Fed. Reg. 48, at p. 12583; see also N.Y. Educ. Law § 4402[7][a]).  State Review Officers have found that although a board of education cannot always be expected to know who the student's regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but who is also teaching in the subject matter or grade level in one of the programs which might be appropriate for the student (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-100, n.1; Application of a Child with a Disability, Appeal No. 02-080; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 00-060).

             Members of the July 13, 2004 CSE included the student's mother, the CSE Chairperson, a tenth grade high school regular education teacher, an elementary special education teacher and an additional parent member (Dist. Ex. EE at p. 4; Tr. pp. 203-04).  The CSE recommended placing the student in an eighth grade inclusion class at petitioner's middle school.  The regular education teacher who participated at the July 13, 2004 was a tenth grade high school teacher who was neither a teacher of the student nor teaching a program that might be appropriate for the student.  The special education teacher was not a teacher of the child, special education provider of the student, or a person responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Questions 24, 26).  Therefore, the impartial hearing officer properly found that the July 13, 2004 CSE meeting was improperly composed due to the lack of a proper regular education teacher and a proper special education teacher (IHO Decision, p. 5).

             It is well established, however, that the existence of a procedural flaw in the formulation of a student's IEP does not automatically require a finding of a denial of a FAPE (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-015; see also Grim, 346 F.3d at 381; Pawlet Sch. Dist., 224 F.3d at 69; Werner, 363 F.Supp.2d at 659; Pascarella, 153 F.Supp.2d at 153; Briere, 948 F.Supp. at 1255; Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158.  Rather, a denial of a FAPE occurs only if the procedural violation results in a loss of educational opportunity for the child, or seriously infringes upon respondents' opportunity to participate in the process of formulating the IEP, or compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP. 

             I disagree with the impartial hearing officer's conclusion that this procedural flaw did not have an impact upon the discussion at the meeting.  The student's recommended placement included participation in an eighth grade inclusion class at petitioner's middle school taught in a regular education class by a regular education teacher and a special education teacher (Dist. Ex. EE at p. 1).  The regular education teacher present at the July 13, 2004 CSE meeting was a tenth grade regular education teacher (Tr. p. 203).  The special education teacher present at the July 13, 2004 CSE meeting was an elementary special education teacher (id.).  An audiotape of the July 13, 2004 CSE which was submitted as evidence, revealed that the tenth grade general education teacher described a district program that was available to the student during summer 2004 and the special education teacher provided a description of how study skills goals and objectives would be addressed (Dist. Ex. JJ).

             The contribution from an appropriate regular education teacher and an appropriate special education teacher was essential because the CSE was recommending participation in a regular class taught by a regular education teacher and a special education teacher at petitioner's middle school (Dist. Ex. EE).  Participation of the regular education teacher in consideration of curriculum modifications or other specialized instruction or support services is integrally related to the offer of an appropriate program to a child with a learning disability (see 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24; Application of the Bd. of Educ., Appeal No. 05-063).  Neither the tenth grade regular education teacher nor the elementary special education teacher could discuss the specific curriculum requirements of the proposed eighth grade middle school inclusion class for the 2004-05 school year.  I find that there was a lack of contribution at the July 13, 2004 CSE meeting from a required regular education teacher and a special education teacher of the student, who could discuss the specific curriculum requirements and could provide input on the modifications and supplementary aides and services to ensure involvement and progress in the general curriculum, and participation in the regular education environment to the maximum extent appropriate. The lack of contribution compromised the development of the student’s IEP, significantly impeded parental participation in the formulation of the IEP and denied the student educational benefits. The student was thereby not offered a FAPE for the 2004-05 school year (Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158; Application of the Bd. of Educ., Appeal No. 05-063; Application of the Bd. of Educ., Appeal No. 02-056; Application of a Child with a Disability, Appeal No. 01-105; Application of a Child with a Disability, Appeal No. 01-083). 

             Having determined that petitioner has not met its burden of proving that it had offered to provide a FAPE to the student during the 2004-05 school year, I must now consider whether respondents have met the burden of proving that the services offered to the student by Kildonan during that school year were appropriate (Burlington, 471 U.S. 359; Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-080).  In order to meet that burden, the parent must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program which met the child's special education needs (Application of a Child with a Disability, Appeal No. 04-108; Application of a Child with a Disability, Appeal No. 01-010). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 14; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105).

             Petitioner asserts that the record does not support the impartial hearing officer's determination that Kildonan was an appropriate placement.  Petitioner notes that the impartial hearing officer opined that the two programs available to the student represented a "very close case" (see IHO Decision, p. 13), as the programs offered by Kildonan and by petitioner's district were "intended to serve many of the same purposes" (IHO Decision, p. 10).  The impartial hearing officer determined that the student required the program at Kildonan because of the severity of his needs and, the program at Kildonan enabled him to make meaningful progress with a level of frustration tolerable to him (IHO Decision, p. 13).  In making this determination, the impartial hearing officer acknowledged that the student's mother and the three private evaluators who testified on behalf of the student incorrectly stated that Kildonan provided the student with Orton-Gillingham reading instruction in all of his classes at Kildonan, and that their testimony was refuted by the testimony of the Academic Dean at Kildonan, who testified that this was not the case (IHO Decision, p. 9).  The impartial hearing officer instead relied upon course descriptions in the student's progress reports, which described lessons and instructional activities, and upon the Academic Dean's statement that subject matter classes were organized to provide instruction in short segments designed to maintain the student's attention (IHO Decision, p. 10). 

            I will first address Kildonan's implementation of Orton-Gillingham instruction in reading.  The student's mother testified that her son received reading instruction "in an all[-]day intensive program" (Tr. p. 214; Parent Ex. 10).  The speech-language therapist who conducted private evaluations of the student testified regarding her understanding that Kildonan provided "instruction in reading all through the day and in every single class while they're teaching new vocabulary" (Tr. p. 373, see Tr. p. 311).  She testified that the student was "expected to do all his own writing and…all his own reading" in subject area classes (Tr. p. 332).  She stated that the student was "asked to use reading skills throughout the day" (Tr. pp. 311).  In her report of her 2005 evaluation of the student, the private speech-language therapist recommended that the student continue to receive Orton-Gillingham instruction "following a model which supports this multisensory intervention throughout the day" (Parent Ex. 12 at p. 8).   The private tutor who conducted literacy evaluations of the student recommended that the student receive instruction in a setting in which a methodology "like the Orton-Gillingham methodology" is "applied all day, across content areas" (Parent Ex. 16 at p. 12).  Respondents' third witness, a private tutor who supervised Orton-Gillingham instructor trainees at Kildonan and who had observed the student in a language tutorial session during the 2003-04 school year (Tr. pp. 420-21, 423), testified that the student's "difficulty is across the board" and "just doing remedial instruction for him in the area of reading and writing is not enough" because the student "needs it carried across his full day of academics, especially…where all of his subject matter is going to require that he access written materials to learn" (Tr. p. 433).  This witness, however, admitted that she had never observed any of Kildonan's content area courses and was unable to describe how the Orton-Gillingham methodology was carried over in these courses (Tr. pp. 502-03).

             All of these assertions and recommendations, including those made by the private tutor who was employed by Kildonan as a supervisor, were refuted by the testimony of the Kildonan Academic Dean.  The Academic Dean testified that all Kildonan subject matter teachers were trained in the Orton-Gillingham methodology and implement aspects of Orton-Gillingham in their classrooms for teaching new vocabulary (Tr. pp. 662, 668-69).  However, when asked how Orton-Gillingham reading instruction was implemented in content courses, he stated that reading instruction was "addressed primarily in the language training tutorial" and was not provided in content area courses (Tr. pp. 697-99).  His testimony that reading instruction was not provided in content area classes and that students were not required to read in content area classes because reading for comprehension was done for the student by the teacher or by student volunteers (Tr. pp. 697-99) does not support claims by the private speech-language therapist that, at Kildonan, the student was expected to do all his own writing and all his own reading in subject area classes and was able to and asked to use reading skills throughout the day (see Tr. pp. 311, 332, 373; Parent Ex. 12 at p. 8), nor does it support similar assertions made by the two other private evaluators (Parent Ex. 16 at p. 12; Tr. p. 433) and by the student's mother (Tr. p. 214).  I find that the student's need for reading instruction in content classes as recommended by respondents' three private evaluators, was not addressed at Kildonan.

             I will next address the impartial hearing officer's reliance upon the Academic Dean's statement that subject matter classes at Kildonan were organized to provide instruction in short segments designed to maintain the student's attention (IHO Decision, p. 10).  Review of a November 2004 progress report from the student's language tutorial reveals that these daily lessons consist of various short activities that directly address the student's deficits in reading (see Parent Ex. 19 at p. 1).  Information regarding how this is accomplished in content area classes is limited to reports of classroom observations conducted on April 1, 2003 (Dist. Ex. M) and May 24, 2004 (Dist. Ex. L).  Both reports describe several activities conducted within each class period, consistent with the Academic Dean's testimony.  However, the May 25, 2004 report, which describes a class of eleven children in which the student "listens passively while doodling" during teacher lectures (Dist. Ex. L).  This description is not consistent with the Academic Dean's testimony that small class sizes at Kildonan allow teachers to identify and address student needs, nor is it consistent with methods the Academic Dean described to address the student's attention deficits (Tr. pp. 669-70, 704-05).

             The student has a diagnosis of ADHD (Dist. Ex. N at p. 1) for which different medications have been prescribed with varying success (Tr. pp. 670-71).  His difficulty maintaining focus is described by most of his teachers in their progress reports.  The earliest Kildonan progress reports in the record are from the student's seventh grade year, dated October 21, 2003 and November 26, 2003 (Parent Ex. 1).  This report includes statements from three teachers who describe "unfocused behavior" (Parent Ex. 1 at p. 3), occasional episodes of "difficulty focusing in class" (Parent Ex. 1 at p. 4) and behavior that distracted the class (Parent Ex. 1 at p. 6), but does not describe any actions taken to address these difficulties.  Progress reports dated February 24, 2004 contain similar statements (see Parent Ex. 1 at pp. 10, 13).  A June 8, 2004 report from his language-training tutor, who provided 1:1 instruction to the student, notes that the student "needs to put more effort into staying focused in tutoring sessions as well as completing his assignments on [a] regular basis" (Dist. Ex. GG at p. 6).

             Reports from the student's 2004-05 school year identify similar concerns.  A progress report dated November 24, 2004 includes comments from his math teacher and his science teacher regarding the student's difficulty remaining focused, including his inability to "pay attention long enough to listen to the answers to his questions" and his language training tutor referred to the student's "many avoidance tactics" (Parent Ex. 19 at pp. 2-4).  The final progress report from the 2004-05 school year includes comments from every teacher regarding the student's difficulty attending (see, e.g., Pet. Ex. C at p. 2).  Nothing in the record offers insight into strategies in place at Kildonan to address the student's persistent difficulty with attention and focus.  Therefore, I cannot conclude that Kildonan services are appropriate to meet this need.

             Petitioner also asserts that the impartial hearing officer discounted standardized test results which demonstrated that the student had made progress while attending school in petitioner's district and that the impartial hearing officer had likewise discounted standardized test results indicating that the student had made little progress at Kildonan. Petitioner further asserts that the impartial hearing officer discounted the relevance of the student's increasingly poor grades at Kildonan and credited the Kildonan teachers with objectivity in assessing the student's performance.

             The impartial hearing officer determined that the student had made "significant progress" while attending school in petitioner's district based upon results of standardized tests administered prior to the student's placement at Kildonan (IHO Decision, p. 10).   He noted that testimony by respondents' witnesses supported petitioner's claim that standardized test scores suggest that the performance gap between the student and his chronological age peers has widened during his three years at Kildonan (IHO Decision, p. 11).  The impartial hearing officer also noted that the evidence concerning the appropriateness of using standardized test results as a measurement of progress, as well as Kildonan's student test profile indicating that standardized test results should not be used as a "primary indicator of progress" because the scores "do not always illustrate how a student is beginning to apply learned skills and strategies" (id.; see Parent Ex. 2 at p. 3), supported the Kildonan Academic Dean's testimony that the student’s progress at Kildonan was measured by "qualitative changes in the student's performance" (IHO Decision, p. 12).  He further noted that Kildonan teachers reported inconsistent performance by the student, but he concluded that the student's performance was consistent with the severity of his disability and was further affected by episodes of poor health and difficulties with medication changes (IHO Decision, p. 13).

             In order to address these assertions, I have carefully examined all standardized test scores, report cards, and narrative progress reports in the record.  The Wechsler Individual Achievement Test (WIAT) was administered to the student on March 9, 2001 when the student was nine years, seven months old and in fourth grade in petitioner's district (Dist. Ex. Q).  The student achieved standard (and percentile) scores of 73 (4) in basic reading, 79 (8) in reading comprehension, a total reading score of 74 (4) and a standard score of 78 (7) in spelling (Dist. Ex. Q at p. 1).  When the WIAT was administered to the student eleven months later on January 14, 2002, the student achieved standard scores of 78 (7) in basic reading, 84 (14) in reading comprehension, a reading composite score of 78 (7) and a standard score of 78 in spelling (Dist. Ex. P at p. 1).  In concluding that these test results indicate progress, I note that petitioner's school psychologist testified that a standard score that remains the same after one year indicates "one year's growth" and an increase in the student's standard score indicates "more than a year's growth" (Tr. pp. 123-24).

             A review of results of administration of the Wide Range Achievement Test - III (WRAT-III) at Kildonan between November 2002 (Dist. Ex. II) and May 2004 (Parent Ex. 2) reveals that from November 2002 to May 2004, the student's standard (and percentile) score in reading increased from 71 (3) to 79 (8) and his spelling score increased from 68 (2) to 78 (7) (compare Dist. Ex. II; Parent Ex. 2 at p. 1).  Administration of subtests of the Woodcock Johnson Tests of Achievement in June 2003 (Dist. Ex. O) and the Woodcock Johnson Reading Mastery Tests – Revised in March 2005 (Parent Ex. 16) by private evaluators yielded standard (and percentile) scores of 65 (1) in basic reading skills in 2003 (Dist. Ex. O at p. 2) and 68 (2) in 2005 (Parent Ex. 16 at p. 4).  Results of other standardized tests administered during the same period, including the Gray Oral Reading Test - Fourth Edition (GORT-IV), the Gates-MacGinitie Reading Tests and the Test of Language Development (TOLD) do not reflect significant progress (see Parent Exs. 2 at p. 1, 17; Dist. Exs. K at p. 3, II).

             There is considerable testimony by respondents' witnesses regarding the appropriateness of relying upon standardized test scores to demonstrate the student's progress at Kildonan.  The private speech-language therapist testified that the grade equivalent scores on standardized tests administered at Kildonan did not suggest significant progress, but opined that these scores were not a reliable measure of progress, and that progress should be determined through qualitative analysis of test data (Tr. pp. 355-56, 363).  The private evaluator who had conducted literacy evaluations of the student opined that standardized test results indicated that the student had made progress at Kildonan, but later testified that results of the Test of Written Language (TOWL) did not show progress because standard scores were "based on average students" and opined that assessing progress required analysis of "qualitative changes" (Tr. pp. 613-14).

             The private evaluator who supervised Orton-Gillingham instructors at Kildonan testified that the student had made "large gains" given the severity of his disability, but stated that gains in an Orton-Gillingham program could not be measured by standardized tests because standardized tests contained "too few items" to allow for measurement of progress and because skills gained using Orton-Gillingham were "outside of the parameters of the test" (Tr. pp. 452-54, 536).  When asked why standardized testing was used at Kildonan if it did not provide accurate measures, she indicated that "parents and the school district wanted them" and testified that language tutors at Kildonan used informal assessments based upon the Orton-Gillingham curriculum and collected alternative information to reflect progress (Tr. p. 457).  Although the impartial hearing officer concluded that Kildonan teachers were capable of obtaining objective qualitative measures of performance, I am not persuaded by these arguments because the record does not reflect the measures employed.  If Kildonan teachers relied upon curriculum-based assessments geared toward measuring student progress in specific skills, under the circumstances of this case, they should have produced them.  Further, respondents did not offer an adequate explanation of a statement on the Kildonan report of test results which notes that the student's standardized test scores "provide a fair representation of the student's present language and arithmetic function" (Parent Ex. 2 at p. 1), a statement which contradicts testimony by all three private evaluators.

 Testimony in the record regarding the inadequacy of standardized test scores as a measure of the student's progress is consistent.  This testimony indicates that Kildonan teachers rely upon measures of progress specific to the Orton-Gillingham methodology, however, these specific measures are not reflected in the record.  The reports in the record describing the student's performance are Kildonan's standardized test results, which suggest inconsistent performance and no significant progress, letter grades for each subject which suggest deteriorating performance, and narrative teacher reports which describe persistent difficulties with both attention and completion of assignments (see Dist. Ex. II; Parent Exs. 1, 2; Pet. Ex. C).   The impartial hearing officer's conclusion that, while available documentation suggests inconsistent performance over a two-year period, Kildonan staff used objective qualitative measures to monitor progress (IHO Decision, p. 12), is not supported by the record.

             I will now address petitioner's claim that the impartial hearing officer discounted the relevance of the student's poor grades at Kildonan.  The private evaluator who supervised tutors at Kildonan testified that the student made good progress in sixth grade, but that his progress in seventh grade was impeded by illness as well as by the increased demands of the seventh grade curriculum (Tr. pp. 435-36).  She indicated that when the student was in seventh grade, teachers discovered that the student's family had been helping him with his homework and that discontinuing that help resulted in a drop in the student's grades (Tr. pp. 437-39).  She also testified that in eighth grade the student's grades were "starting to improve" and indicated that the student was taking more responsibility for completing assignments independently (Tr. p. 439).  The private evaluator's testimony is not supported by the record.  A progress report dated October 15, 2004 indicates that the student's grades in his content courses at the beginning of eighth grade included one B-, one C and two grades of D+ (Parent Ex. 19 at p. 1).  His final grades for the 2004-05 school year showed some improvement in content courses, as he achieved one grade of C, two of C- and one D (Pet. Ex. C).  However, teacher narrative reports do not reflect the evaluator's assertion that the student was assuming responsibility for completing assignments.  An April 2005 progress report, dated nine days before this witness' testimony, included a statement from the student's math teacher that the student's homework was not handed in consistently and that the student "never makes homework corrections which would increase his grade and understanding" (Parent Ex. 19 at p. 13).  His literature teacher reported that the student "rarely follows directions or brings required materials to class" (id.).  His history teacher described a recent assignment as "disappointing" (id.).

             The Kildonan Academic Dean testified that the student's slight progress at the end of seventh grade was significant because of the severity of the student's disability (Tr. p. 677) and that a medical condition affecting the student in eighth grade had affected the student's performance in the 2004-05 school year (Tr. pp. 670-71).  The Academic Dean indicated that a January 2005 change in the student's medication for ADHD had a positive effect upon the student, and that his teachers had reported improved understanding and participation in the second semester of the 2004-05 school year (Tr. pp. 670-71, 685-687).  However, the student's April 2005 progress report, dated one month before the Academic Dean's testimony, includes a statement from the student's literature teacher that the student's class participation was "increasingly negative" and his science teacher reported that the student "needs to work more on sharing tasks with his group members" (Parent Ex. 19 at p. 13).  The student's final progress report for the 2004-05 school year included remarks from his math teacher indicating that the student "tends to try to evade work" and that many of his assignments were "handed in late if at all" (Pet. Ex. C at p. 2).  The student's literature teacher reported that the student was "often unprepared for class" (Pet. Ex. C at p. 3), his science teacher reported that "many assignments were submitted late" (Pet. Ex. C at p. 5), and his art history teacher reported that the student "has a hard time respecting the learning environment" (Pet. Ex. C at p. 6).

             The narrative progress reports written by the student's teachers at Kildonan, which reflected the student's performance over a two-year period between September 2003 and June 2005, suggested some inconsistencies in the student's performance but were consistent in their description of the student's difficulties with attention and completion of assignments.  Although these two areas of concern were identified and reports indicate that they persisted throughout the two-year period, significantly, the reports do not explain how or whether these difficulties were addressed.  One teacher reportedly adjusted the student's assignments to ensure successful completion and this appeared to be an effective strategy (Parent Ex. 19 at p. 2), but other teachers did not report making this or any other kind of accommodation to address the student's difficulties completing assignments, which persisted throughout the student's tenure at Kildonan.  Likewise, the record does not reflect how Kildonan addressed the student's attentional deficits, which progress reports suggest remain a persistent problem.  The Academic Dean testified that Kildonan's small class size allowed teachers to identify and address needs, and offered examples of general strategies employed to address attentional difficulties (Tr. pp. 669-70, 704-05).  The private evaluator who supervised Kildonan's language tutors testified that Kildonan teachers are "keenly tuned and keep records of…how often they are on task, off task" (Tr. p. 463).   The record does not substantiate this testimony.  The only reference to strategies for refocusing the student was made by the student's literature teacher in her June 8, 2005 progress report, in which she notes that she "strongly prompted him to regain his focus…this was a time-consuming habit, so I often spoke with him out of class." (Pet. Ex. C at p. 3). Inconsistent with evidence of refocusing, the report of petitioner's school psychologist who observed the student in May 2004 noted that the student was "doodling" on two occasions during a lesson but was not prompted to refocus (Dist. Ex. L).  Given the testimony by respondents' private evaluator and the Academic Dean regarding the small class size at Kildonan and how this small class size allows for addressing individual needs, it is noteworthy that teacher reports continually identified the student's needs but failed to demonstrate strategies to address them.  I cannot conclude, as did the impartial hearing officer, that respondents have demonstrated that Kildonan offered a program that was appropriate to their son's special education needs. 

             Based upon the foregoing, I find respondents failed to meet their burden of proof under the second Burlington criterion for an award of tuition reimbursement.  As such, the necessary inquiry is at an end (Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-039).⁴

             I have considered petitioner’s remaining contentions and I find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer’s decision is hereby annulled the extent that it awarded tuition reimbursement to respondents for their son’s tuition at Kildonan for the 2004-05 school year.